Case Explained: Convicted rapist Thabo Bester tells court he did not escape prison – Legal Perspective

Convicted rapist and murderer Thabo Bester told the High Court in Johannesburg on Tuesday that he was lawfully released from Mangaung Correctional Centre in May 2022 and did not escape.

Bester made the claim during an urgent application challenging charges related to his alleged escape from custody. 

Authorities say he escaped in May 2022 after faking his death in a prison cell fire, allegedly with the assistance of Nandipha Magudumana and several prison officials.

Earlier this month, the High Court in Pretoria dismissed Bester’s urgent application for the second time. 

He had sought a transfer from the eBongweni Super Maximum Correctional Centre in KwaZulu-Natal to the Kgosi Mampuru Correctional Centre in Pretoria.

The Department of Correctional Services (DCS) transferred Bester to the KwaZulu-Natal facility in January, citing security concerns.

Addressing the court, Bester argued that his constitutional rights had been infringed and that he was being denied a fair opportunity to prepare his defence.

“Now, if I’ve lost my humanity because of what I’m accused of – I’m convicted of rape and murder – does that mean I am no longer entitled to a fair trial?” he said.

He added that the application had been filed in December last year and that delays in responses from the respondents forced him to approach the court urgently.

“I was physically in this court and the matter was struck off the roll because I had no answering papers. Then I was transferred to eBongweni,” he said.

Bester said he had only returned on Sunday and instructed his legal team to act quickly. 

He claimed that “incarcerated individuals” who are already sentenced are not given adequate opportunities to prepare their defence.

He argued that, under the Correctional Services Act, such support is typically afforded to remand detainees rather than sentenced inmates.

“The challenge is that the sentence I am serving is itself in question,” he said. 

“A court could find that I have been serving it unlawfully and that I was, in fact, lawfully released.”

Bester maintained that the burden of proof rests with the state.

“The state must prove that I am guilty. I cannot be expected to furnish my defence to the respondents outside of a trial court,” he said.

He also questioned the validity of the warrant under which he is being held, arguing that only a court can determine whether it remains lawful.

“There is no warrant in the world that is absolute,” he said, adding that warrants can be amended through legal processes and executive decisions.

Bester pointed to the case of former president Jacob Zuma, who was released on medical parole, arguing that executive decisions can affect the enforcement of sentences.

He said that if he were treated as a remand detainee, it would not prejudice the state, as he would remain in custody while being afforded greater access to prepare his defence.

“The presumption of innocence is a fundamental right,” he said. 

“It cannot be excluded simply because I have been convicted in another matter.”

However, IOL News previously reported that Judge John Holland-Muter previously dismissed Bester’s application, finding no urgency or merit in his request for transfer.

The judge said the Department of Correctional Services had acted within its rights in relocating Bester for security reasons and that no constitutional rights had been violated.

Bester’s lawyer, Benjamin Moafrika wa Maila, argued that the transfer to eBongweni made it difficult for the legal team to consult with their client ahead of his trial.

Holland-Muter rejected this argument, noting that consultation facilities – including virtual options – were available at the prison and could be arranged if needed.

He acknowledged that it might be more convenient for Bester to be held in Gauteng but ruled that the transfer to the Kokstad facility was lawful and justified.

“Nothing procedurally wrong or unfair took place. His right to legal representation was not infringed,” Holland-Muter said.

He added that Bester’s history of escape warranted stricter supervision in a super-maximum security facility.

“I see no urgency and no merit in the application for his transfer,” the judge said.

IOL News